EVEREST ADVERTISING PVT LTD Vs. PRATIK C KHANDHADIYA

JUDGEMENT

(1.) THIS Writ Petition under Article 226 of the Constitution of India challenges the order of the 1st Labour Court, Bombay dated September 25, 1998 made in Complaint (ULP) No. 243 of 1991 under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter called "the Act" ).

(2.) THE Petitioner is an Advertising Agency. As a part of its work, it carries on the production of Audio-Visuals. The first Respondent was appointed in the employment of the Petitioner by a letter dated December 11, 1987 as an Executive in the Audio-Visuals Department, with effect from January 11, 1988. By an order dated April 30, 1991, the first Respondent was promoted to the position of Group Manager, Audio Visual, with effect from April 1, 1991. Upon his appointment, the monthly emoluments of the first Respondent were suitably revised as indicated in the said letter. It may be mentioned here that in the Audio Visual Department, as Group Manager, the first Respondent was required to oversee the work of Senior Film Executive, Audio Visual Assistant, Billing Executive and Stenographers. The services of the first Respondent were terminated with effect from September 2, 1991. The first Respondent gave an Advocate's notice on September 9, 1991 contending that the termination of his services was illegal and called upon the Petitioner to reinstate him in service with full back wages and continuity of service. By its Advocate's reply dated September 25, 1991, the Petitioner suitably replied the said notice and declined to accede to the demand.

(3.) THE first Respondent moved Complaint (ULP) No. 243 of 1991 before the Labour Court invoking Items 1 (a), 1 (b), 1 (d) and 1 (f) of Schedule IV of the Act. The thrust of the case made out in the Complaint was that while the first Respondent was working in the Audio Visual Department, he had to carry out physical work as Technician, Cameraman and Editor for various agencies, in house jobs. He specifically contended that he was doing mainly 'manual and technical work' and had no power of an Executive and administrative nature. For this reason, the first Respondent contended that he was an 'employee' within the meaning of Section 3 (5) of the Act read with Section 2 (s) of the Industrial Disputes Act, 1947 and, therefore, entitled to protection under labour laws. He alleged that the action of abrupt termination of his service was mala fide and taken as retaliation for a complaint made by him about rifling of his table drawer and taking away of his personal belongings therefrom, including cash amount of Rs. 2,000/- on the night of September 2, 1991. He also alleged that because of the said incident, in order to extract revenge on him, he was served on September 7, 1991 a back-dated letter dated September 2, 1991. It was contended in the Complaint that the order or termination of service was illegal and amounted to unfair labour practices under Items 1 (a), 1 (b), 1 (d), and 1 (f) of Schedule IV of the Act. The Petitioner appeared before the Labour Court and contested the case. In a nutshell,' it was the case of the Petitioner that on and from April 1, 1991 the first Respondent had been promoted to the post of Group Manager of the Audio-Visual Department in a managerial category. The Petitioner contended that the first Respondent was not a 'workman' even when he was working as Senior Manager and, much less so after he was promoted as Group Manager. The Petitioner also denied that the Labour Court had jurisdiction to entertain the Complaint since the first Respondent was not an 'employee' within the meaning of Section 3 (5) of the Act. On merits, the Petitioner denied that the termination of the first Respondent's service amounted to an unfair labour practice as alleged and prayed for dismissal of the Complaint.